Open court

What is Open Court?

“Open court” refers to judicial proceedings to which the public has access. Public access includes the ability to attend courtroom proceedings, as well as access to court records and transcripts. Open Courts are normal courts where proceedings of the court are conducted where every person is allowed to watch the proceedings of the Court. The open court principle in practice means that court proceedings, evidence, and documents be open to public scrutiny and juries and judges should give their decisions in public. There are two primary reasons why the open court principle developed. It exists mainly to (1) protect the interests of those who are subject to the authority of courts, and (2) permit democracy to work.

The principle of open court is embodied in the words of Jeremey Bentham, “Publicity is the very soul of justice”. The idea of open court is crucial to maintaining public confidence in the administration of justice and to ensure a check on the process of adjudication in judicial proceedings.

Historical evolution

The tradition of public hearings in English court proceedings traces back to the Norman Conquest. The Magna Carta of 1215 solidified the emphasis on the right to open courts , a principle reinforced by Sir Edward Coke , who stressed the significance of conducting trials openly in the King's Courts. In 1565, Sir Thomas Smith connected the public nature of English trials to the need for a documented record due to limited written legal documentation .

In the 19th century, Jeremy Bentham contributed to the theoretical foundation of the modern presumption of openness. He highlighted benefits such as enhanced performance, judge protection, and public education . Additionally, Hale and Blackstone underscored the importance of the open examination of witnesses and trial publicity for uncovering the truth.

In the United States, the Sixth Amendment guarantees the right to a public trial, intricately linked to the First Amendment's rights of free speech, press, and assembly. This right was recognized early in U.S. history, appearing in William Penn's Code of Laws in 1682 and finding formalization in state constitutions by 1776. It was ultimately ratified in the federal constitution in 1791. Meanwhile, in Canada, the Criminal Code initially endorsed open courts in 1892. However, amendments in 1953 allowed for the exclusion of the public in specific cases, guided by considerations of public morals, order maintenance, or proper justice administration.

Official Definition of Open court

Black’s Law Dictionary defines an “open court” as follows:  “… a court to which the public have a right to be admitted… This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…”. 

The term “open court” do not have any literal legal codification, but the Supreme Court in Mohammed Shahabuddin vs. state of Bihar defined open court as follows “open court is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings.”

Legal Provisions relating to open court

The concept of open courts is not alien to the Indian legal system. The Constitution adopts the concept in Article 145(4), which states that the Supreme Court shall be an open court: “(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court.” The Code of Civil Procedure, 1908, (“CPC”) and the Code of Criminal Procedure, 1973, (“CrPC”) apply the principle of open courts to all civil and criminal courts in India. Section 153-B of the CPC provides that every civil court which tries a suit shall be deemed to be an open court. Similarly, Section 327 of the CrPC also mandates criminal courts to be open.

Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (erstwhile Section 327 of the Code of Criminal Procedure, 1973),stresses upon the importance of criminal trials to be conducted in an open court and their accessibility to the public to the extent permissible. However, exceptions are carved out, particularly in sensitive cases that require protection of vulnerable individuals such as minors or those involved in sexual offences, where trials may be held in-camera, and publication of proceedings is restricted to protect the identity of the parties involved. The functioning of Special Courts under the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a prime example of such exceptions, where in-camera trials are mandated to safeguard the identities of children and ensure a sensitive environment. In Sakshi v Union of India, the Supreme Court issued significant guidelines to make the justice process child-friendly, emphasising the importance of shielding minors from trauma during judicial proceedings. These exceptions, while appearing to conflict with the transparency of open justice, align with the broader objective of delivering justice while prioritising privacy and dignity

'Open Court' as defined in case law(s)

The principle of open courts has been further solidified by the Indian courts through judicial interpretation in landmark decisions like Naresh Shridhar Mirajkar v State of Maharashtra (1966). A nine-judge bench of the Supreme Court regarded public scrutiny as a crucial check against judicial arbitrariness. It recognised the vital role of public trials in fostering a fair and impartial judicial process and enhancing public confidence in the judicial system. Nevertheless, the Court acknowledged the need for a trial in-camera in certain circumstances in upholding justice, highlighting that open court proceedings are a means to ensure fairness, not an absolute end in themselves.

The Supreme Court’s decision in A.K. Roy v Union of India (1982), clarified that the right to a public trial is a critical component of the judicial process, although it is not a constitutionally guaranteed right in India, as under the Sixth Amendment of the U.S. Constitution. Decisions like Swapnil Tripathi, wherein the Court recognised live audio-video streaming of cases as an extension of the open court principle, are of great significance.

The Court further addressed the issue in Indira Jaising v Secretary General, where it directed that matters related to live-streaming of court proceedings should be brought before the Chief Justice of India on the administrative side, indicating the judiciary’s cautious approach toward integrating technology with the open justice mandate.

Exceptions to the principle of open court

In the interest of prudence, good conscience, and equity, it is established that the following proceedings cannot be open to the public.

Section 53 of the Indian Divorce Act of 1869 addresses the "Power to close doors," allowing the entire or partial proceedings under this Act to be conducted in private if deemed appropriate by the Court. Section 153-B Proviso of the Civil Procedure Code, as amended by Act 104 of 1976, stipulates that the presiding judge may, at any stage of a particular case, order that the public or any specific individual be restricted from accessing or remaining in the courtroom. Section 11 of the Family Courts Act of 1984 emphasizes that proceedings covered by this Act may be held in camera at the discretion of the Family Court or upon the request of either party.

In cases involving offenses under The Protection of Children from Sexual Offences Act of 2012, Section 37 mandates that trials be conducted in camera. Special Courts are required to conduct these trials privately, with the presence of the child's parents or a trusted individual.

Open Court and Live Streaming

The Supreme Court E-Committee in India has introduced comprehensive model rules for the live streaming and recording of court proceedings, outlining guidelines for hardware placement, control mechanisms, and the requisitioning and positioning of human resources within the court. The rules specify exclusions from live streaming, encompassing sensitive areas such as matrimonial matters, child adoption, child custody, sexual offenses under IPC Section 376, cases related to gender-based violence against women, and those falling under the POCSO Act and the Juvenile Justice Act. The guidelines also detail the manner of recording proceedings, including disclaimers, prohibitions, and restrictions. Notably, the High Court retains the power to relax any rule causing undue hardship, ensuring flexibility in application to deal with cases justly and equitably.

The experience of attending court should not be limited to those who can be physically present. Open justice today means leveraging technology to let the public observe court proceedings in real time (or recordings shortly thereafter). The Supreme Court’s landmark decision in Swapnil Tripathi (2018) opened the door for live-streaming court hearings, noting that livestreaming can enable the judiciary to “open the vista of the court rooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings”. Since then, we’ve seen experiments with live-streaming constitutional bench hearings and some High Courts broadcasting proceedings on YouTube. Embracing this fully would mean institutionalising video access, with appropriate safeguards, as a core aspect of open courts. Imagine law school classrooms where law students can understand principles of court procedure, advocacy and courtcraft through observing actual records of courtproceedings instead of being confined to written reports and textbooks. That level of transparency would profoundly democratise the justice system.

Regional Variations relating to Open Court and Live Streaming

The Model Rules for Live Streaming and Recording of Court Proceedings were framed by the E-Committee of the Supreme Court of India in 2021 to enhance transparency, accountability, and public access to the judicial process. These rules serve as a guideline for High Courts to implement live streaming in their jurisdictions while balancing the open court principle with concerns about privacy, confidentiality, and the dignity of proceedings.

The Model Rules for Live Streaming and Recording of Court Proceedings (2021) were designed as a non-binding framework issued by the E-Committee of the Supreme Court of India, with the intention that individual High Courts across the country would adopt and adapt them to their specific requirements. Each High Court, under its administrative autonomy granted by Article 235 of the Constitution, was empowered to frame its own version of these rules, incorporating local needs, logistical capacities, and judicial discretion. This decentralized approach recognized the diversity in technological readiness and infrastructural support among the states.

Several High Courts have moved toward implementing live streaming in different capacities, with Gujarat High Court being the pioneer, having initiated live streaming even before the formal issuance of the model rules. These High Courts have made jurisdiction-specific modifications, such as limiting live streaming to certain types of cases (like PILs or constitution bench hearings), choosing language preferences, and defining how long recordings will be archived or who can access them. However, implementation has not been uniform across all states due to challenges like inadequate infrastructure, data privacy concerns, lack of staff training, and occasional reluctance from judicial officers or litigants. Despite these hurdles, the model rules have served as an important step toward enhancing transparency and public access to the judicial process, while allowing High Courts the flexibility to ensure that these goals are pursued in a context-sensitive manner.

High Courts

Gujarat High Court became the first in India to live-stream its court proceedings and issued the Gujarat High Court (Live Streaming of Court Proceedings) Rules, 2021, crafted by a committee led by Justice J. B. Pardiwala, with CJI N.V. Ramana inaugurating their launch.

Under these rules:

1. Live streams are not part of official court records. Neither the stream nor any observations therein can be treated as an “authorised, certified, or official version” of the proceedings. Only the court’s final orders, judgments, and certified registry-issued documents are the valid official records.
2. Live streams and videos cannot be used as legal evidence. Derivative transcripts or any reliance on them in court filings are explicitly prohibited under Rule 5 of the Rules, and misuse may lead to proceedings under the Contempt of Courts Act, 1971
3. Only weblinks published by the High Court may be used, and only for informational, educational, or academic purposes. Unauthorized copying, editing, sharing or commercial use is prohibited, with copyright held by the Court
4. The Rules empower the presiding judge to pause or stop live streaming in a proceeding, or mute/remove participants, if required, for instance, to prevent misuse or inappropriate content.

Similarly, the High Courts of Karnataka, Madhya Pradesh, Delhi, Bombay (Maharashtra), Patna (Bihar), Orissa, Gauhati (Assam, Nagaland, Mizoram, Arunachal Pradesh), Jammu & Kashmir and Ladakh, Meghalaya, Telangana, Uttarakhand, and Jharkhand. have adopted rules that follow the same core principles:

1. Live streams are not part of the official court record
2. They are inadmissible as legal evidence
3. Access is limited to official platforms for public awareness or academic use
4. The presiding judge retains full discretion to pause or stop streaming.

Most High Courts prohibit streaming of sensitive matters like matrimonial disputes, POCSO cases, or in-camera proceedings. Some courts, such as Bombay and Jammu & Kashmir, have added unique features like delayed streaming or mandatory placeholder messages during dictation. Madras and Allahabad, by contrast, have yet to fully implement live streaming through formal rules, citing ongoing administrative considerations.

Also, Delhi High Court and Kerala High Court have their own live streaming platforms, unlike the other High Courts that stream on Youtube.

The Delhi High Court explicitly mentions infrastructure and accessibility for persons with disabilities in its Live Streaming and Recording of Court Proceedings Rules, 2022. These rules provide that: “Recordings of proceedings, wherever available, shall also be made accessible to persons with disabilities.” This includes efforts to ensure that transcripts or live-stream interfaces are made compatible with assistive technologies like screen readers or captioning software, aiming to make courtroom access more inclusive. While other High Courts may have general accessibility provisions in their broader digital infrastructure or courtroom design, Delhi High Court is the only one so far that directly incorporates accessibility for disabled persons in its live-streaming framework.

International experiences

Various legal systems around the world have recognized the importance of the principles of Open Court, with minor variations in their interpretation and application.

In the English legal system, there is a fundamental norm that justice must be administered publicly during hearings accessible to anyone within the court's capacity, with the proceedings reportable by the press. Emphasizing the significance of this principle, the court in R v City of Westminster Magistrates’ Court described it as 'a fundamental element of our system of justice and vital to the rule of law.' This principle fosters transparency, enabling the public to scrutinize the legal system for better or worse. In A-G v Leveller Magazine Ltd, The House of Lords laid down certain principles:

1.    The standard practice is for criminal proceedings to be conducted publicly.

2.    However, courts possess the authority to exclude the public if necessary.

3.    The exercise of this power, like any departure from the open justice principles, should be strictly limited to cases where the public's presence would obstruct or make impractical the administration of justice.

The American Legal System has enriched the right of public access to court proceedings in their Constitution. Specifically, the 6th Amendment of the United States Constitution guarantees defendants the right to a public trial, encompassing all phases of criminal cases. Moreover, the Supreme Court has articulated that the press and the public possess a similar and independent right under the 1st Amendment to attend all criminal proceedings in both federal and state courts.

While the Supreme Court has not explicitly affirmed a First Amendment right of access to civil proceedings, federal and state courts addressing the matter have overwhelmingly concluded that there exists a public right to access in civil cases under the 1st Amendment.

Despite its constitutional nature and origin, the right to public and open hearings is not absolute. It may be subject to considerations of other competing rights or interests. For instance, interests in security, preventing disclosure of non-public information, ensuring a fair trial, or protecting a child from emotional harm may potentially outweigh the right to public access. The constitutional guarantee, therefore, is not without exceptions and may be carefully weighed against other compelling considerations.

Shifting the focus to international law, Article 67(1) of the Statute of the International Criminal Court states that “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially.”

Research that engages with Open Court

Open Courts in the Digital Age: A Prescription for an Open Data Policy (Vidhi)

The report Open Courts in the Digital Age: A Prescription for an Open Data Policy by Adrija Jayanthy, Ameen Jauhar, Chitrakshi Jain, Divij Joshi, Malavika Rajkumar, Shreya Tripathy and Tarika Jain, is an analysis of open courts in India, with recommendations for a policy to ensure data accessibility and explains the technological foundations of open data, traces the evolution of open courts in India, highlights the issues that remain for open courts, and suggests how an open data policy can address potential privacy concerns, among other recommendations.

Balancing Open Courts with The Right to Privacy – An Indian Perspective (DAKSH)

The research paper Balancing Open Courts With The Right To Privacy – An Indian Perspective by Aakanksha Mishra and Siddharth Mandrekar Rao, navigates the balance between public access and privacy in judicial proceedings, defining judicial data, categorizing personal information, and addressing the unique privacy challenges of open court records. Examining the transition to digital records and legal dimensions of privacy in India, it reviews intersections with open court principles. The conclusion provides practical suggestions to mitigate conflicts between the right to know and privacy, drawing from court decisions and the existing regulatory framework, including the Right to Information Act, 2005.

Live Streaming of Court Proceedings: A Substantial Step Forward (Bar and Bench)

The article, Live Streaming of Court Proceedings: A Substantial Step Forward by Muneeb Rashid Malik, praises the Supreme Court of India's decision to live stream Constitution Bench proceedings, citing it as a step toward transparent and accessible justice. It underscores technology's role in promoting accountability and public confidence. While recognizing the need for in-camera trials in specific cases, the article urges other courts to adopt live streaming, enhancing public understanding of legal processes and ensuring broader access to justice.

How will live-streaming court hearings change the way the Indian justice system works? (Scroll.in)

The article, How will live-streaming court hearings change the way the Indian justice system works? by Umang Poddar, explores the implementation of live-streaming court proceedings in India, noting its positive impact on access to justice. It acknowledges concerns about sensationalism and its effects on courtroom behaviour. The adoption of live-streaming by High Courts, along with outlined rules, is discussed, providing a concise evaluation of the evolving legal landscape in the digital age.

Open Courts and Media (DAKSH)

The article, Open Courts and Media by Surya Prakash, emphasizes the importance of open courts and the media's role in shaping public trust in the judiciary. Recent developments, like the Supreme Court's media app for live-streaming, highlight the evolving relationship between the two. It discusses courts' control over media access and the need for clear court reporting. Anticipating increased public broadcasting, the author calls for enhanced court-media interactions to ensure transparency and accountability.

Victim Privacy and the Open Court Principle (Policy Centre for Victims Issues, Canada)

This paper, Victim Privacy and the Open Court Principle by Jamie Cameron, analyses the conflict between victim privacy and the open court principle, with a focus on sexual assault proceedings in the Anglo-Canadian legal tradition. It traces the evolution of the open court principle from common law to constitutional status, emphasizing the transformative impact of the Charter of Rights and Freedoms on victim status. The report underscores the Supreme Court's recognition of a right to victim privacy, particularly in sexual assault cases, and explores the delicate balance between protecting privacy and upholding the open court principle.

The Moat that Is and Should Not Be: Rethinking Access to Judicial Data

This paper, The Moat that Is and Should Not Be: Rethinking Access to Judicial Data by Rohan K George, critically explores the systemic challenges faced by legal technology innovators in accessing Indian judicial data despite its public nature. The author, drawing from personal experience as a legaltech founder, highlights how outdated infrastructure, lack of structured data access, and barriers like CAPTCHAs and fragmented digital portals create an artificial “content moat” around essential court information. This not only hampers innovation but burdens the judiciary’s digital systems and undermines the constitutional principle of open justice. George argues that the digital interpretation of open courts must evolve to include open APIs, structured databases, and accessible hearing recordings. He advocates for a unified judicial data portal with tiered access models that can fund improved infrastructure while enabling startups, researchers, and the public to engage meaningfully with the justice system. Ultimately, the paper makes a strong case for democratising legal data access as a constitutional imperative and a catalyst for innovation, transparency, and public trust in the judiciary.

Digital Justice Delivery in Post-Pandemic India: Upholding the Principle of Open Courts (Journal of Indian Law and Society)

The article, Digital Justice Delivery in Post-Pandemic India: Upholding the Principle of Open Courts by Anamika Shukla, examines how India's judiciary has adapted to digital modes of functioning in the wake of the COVID-19 pandemic and the resulting implications for the constitutional principle of open justice. She evaluates the shift to virtual hearings and online court access, highlighting both the transformative potential and emerging concerns of digital justice delivery. While digital platforms have enabled continued judicial functioning and broader public access during lockdowns, the paper flags issues such as digital exclusion, lack of infrastructure, and opaque decision-making as threats to transparency and participatory justice. The author argues that while technology can bolster the open courts principle, it must be supported by robust policy frameworks ensuring accessibility, inclusivity, and institutional accountability. The paper ultimately calls for a nuanced digital justice model that strengthens, rather than compromises, the democratic values enshrined in the open courts tradition.

The grandstanding dilemma: Maintaining courtroom decorum in the age of live streaming (Bar and Bench)

This piece, The grandstanding dilemma: Maintaining courtroom decorum in the age of live streaming by Anamika Shukla, Tarun, and Prachi Tripathi, examines the rising issue of courtroom “grandstanding” in India amid the increasing prevalence of live-streamed proceedings. It begins with a recent public exchange between the Chief Justice of India and an advocate during a NEET hearing, highlighting how visibility can incentivize lawyers to perform theatrically for audiences rather than argue substantively. With no current guidelines specifying acceptable conduct for lawyers or judges during broadcasted hearings, the article warns that sensational displays attract media attention and distort public perceptions, distracting from the legal merits of cases . It surveys existing professional codes, the Advocates Act, BCI Rules, and Restatement of Values of Judicial Life, and notes their inadequacy in addressing behavior specifically in live-streamed contexts (barandbench.com). To counter the threat of public spectacle undermining judicial dignity, the writer advocates for new enforceable standards: updated conduct rules by the Bar Council and judiciary, training for legal professionals, penalties for misuse, and selective expungement of grandstanding incidents from public archives.